Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Poland

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1995)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 1995)

Previous comment

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.

The Committee takes note of the extensive observations from the Independent and Self-Governing Trade Union “Solidarność” (Solidarność) on Conventions Nos 81 and 129, received on 7 September 2023. The Committee also notes the response of the Government to those observations, received on 16 November 2023.

Articles 2(1), 5(a), 6, 12(1) and 16 of Convention No. 81 and Articles 4, 6, 12, 16(1) and 21 of Convention No. 129. Coverage of workplaces by labour inspection. Restrictions on collaboration between labour inspection officials and other public institutions and on inspectors entering workplaces freely. Following its previous comments regarding the restrictions on the powers of labour inspectors set out in the Entrepreneurs Law, the Committee notes the indication in the Government’s report that, in accordance with the Constitution, ILO Conventions and leges speciales such as the Act on the State Labour Inspection, take precedence over the Entrepreneurs Law. As regards joint inspections with other control authorities, including the State Sanitary Inspection and Road Transport Inspectorate, the Committee notes the Government’s indication that such inspections are not prohibited under the Entrepreneurs Law, and notes the statistics provided on such joint inspections with the National Labour Inspectorate (NLI). The Committee also notes section 45(1) of the Entrepreneurs Law, which provides that the economic activity of entrepreneurs is controlled in accordance with the principles specified in this Law, unless the principles and procedure for controls result from ratified international agreements.

The Committee nevertheless notes the observations of Solidarność, indicating that the lex specialis argument has not been accepted in national courts. In response, the Government reiterates its position that section 24 of the Act on the State Labour Inspection allows labour inspectors to carry out, without notice and at any time of day or night, inspections of compliance with the provisions of labour law. The Government further states that the court decision at issue simply limits the labour inspectorate’s ability to conduct a second inspection on the same matter in a given period of time, which, in the Government’s view, helps to strike a balance between the effectiveness of inspection authorities and ensuring minimum procedural guarantees for controlled entities. The Committee also notes the Government’s indication that it has issued a negative opinion on the NLI’s proposals to amend the Entrepreneurs Law and that it does not recognize an exclusion of NLI inspections from the regime of chapter 5 of the Entrepreneurs Law as justified. While taking due note of the Government’s indications, the Committee observes that provisions in national legislation that contradict the requirements of ratified Conventions may pose difficulties for legal certainty, from the standpoint of specific entrepreneurs as well as workers seeking protection through fully authoritative labour inspection. Therefore, the Committee once again requests the Government to take the necessary measures to amend sections 48 and 51 of the Entrepreneurs Law, to provide without qualification that labour inspectors with proper credentials are empowered to enter freely any workplace liable to inspection, in accordance with Article 12(1) of Convention No. 81 and Article 16(1) of Convention No. 129.

Article 3(1) and (2) of Convention No. 81 and Article 6(1) and (3) of Convention No. 129. Additional functions entrusted to labour inspectors, and labour inspection activities for the protection of migrant workers in an irregular situation. Following its previous comments on this issue, the Committee notes the Government’s indication that all the district regional labour inspectorates have specialised sections in charge of performing duties related to the control of employment legality. The Government nevertheless indicates that the NLI is required to cooperate with other competent authorities when controlling the legality of employment, including with the Border Guard and the police. In particular, the Committee notes with concern the Government’s statement that, when a migrant worker is unable to show their work permit, the NLI is obligated to report it immediately to the Border Guard, and that further control activities may be conducted together with Border Guard officers. In this respect, the Committee notes the Government’s indication that such controls also focus on enforcing the migrant workers’ rights, including in the field of wages and social security. The Committee nevertheless recalls that, as emphasized in its 2006 General Survey on labour inspection, paragraph 78, any function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all the workers if it is to be compatible with the objective of labour inspection, and that this objective can only be met if the workers covered are convinced that the primary task of the inspectorate is to enforce the legal provisions relating to conditions of work and protection of workers. Therefore, the Committee urges the Government to take the necessary measures to ensure that the additional functions assigned to labour inspectors do not interfere with the main objective of labour inspectors, which is to provide for the protection of workers in accordance with Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129. The Committee requests the Government to provide detailed statistics on cases in which migrant workers in an irregular situation have been granted their due rights (including the payment of outstanding wages and social security benefits and orders for establishing an employment contract) or have had their situation regularized following an inspection visit.

Articles 5(a), 17 and 18 of Convention No. 81 and Articles 12, 22 and 23 of Convention No. 129. Sanctions and effective enforcement. Cooperation between the inspection services and the judiciary. In response to its previous comments, the Committee notes the statistics provided by the Government regarding notifications to the prosecutor’s office for suspected offences. The Government indicates that between 2020–22, the number of notifications increased from 507 in 2020 to 665 in 2022, the number of investigations opened rose from 133 in 2020 to 150 in 2022 and the number of indictments sent to courts also increased from 45 in 2020 to 88 in 2022. However, the statistics also indicate that the number of investigations refused rose from 47 in 2020 to 67 in 2022 and those discontinued rose from 124 in 2020 to 189 in 2022. The Committee notes the Government’s indication that the most frequent causes for refusing an investigation remain the lack of statutory grounds and insufficient data or evidence. The Government further indicates that some situations where law enforcement agencies consider evidence to be insufficient, such as instances where it cannot be proven that the controlled entity received the labour inspectorate’s summons, pose problems for labour inspectors in the performance of their duties. The Government also indicates that while 76 indictments were sent to court in 2021 and 88 indictments in 2022, there were a total of 3 custodial sentences imposed in those two years. Further, the Government reports that the amount of fines imposed in 2021 totalled 16,500 Polish zloty (US$4,099) and in 2022 totalled 20,300 zloty (US$5,043). The Committee also notes the observations of Solidarność, which take the view that legal measures and sanctions applied by labour inspectors are insufficient to ensure a lasting improvement in OSH in the construction and manufacturing sectors. The Committee requests that the Government indicate the measures taken to further improve collaboration between the prosecutor’s office and the NLI. In this regard, the Committee requests the Government to continue to provide statistics on the number of notifications made to the public prosecutor’s office, the number of such notifications which resulted in proceedings, and the results of such proceedings. In addition, the Committee requests that the Government provide information on the apparently very low number of sentences and the small amount of fines imposed, and on measures taken or envisaged to increase sanctions for OSH violations.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2024.]